Criminal Law, Dangerousness & Protection of Fundamental Rights

Principles of Criminal Law, which are directly or indirectly recognized in the Constitution as legal guarantees for the citizens against the ius puniendi, are founded in the notion of freewill, and in the consequent attribution of responsibility as a basic feature connected to the principle of autonomy. This is the theoretical foundation, not only of the traditional concept of culpability, but also of the general notion of conduct (a voluntary act or behavior that can give rise to liability in case of breaching a duty which is personally demanded to the subject): the criminal sanction is justified only when a citizen has failed to comply with the correct behavior personally demanded of him by means of an act or an omission, taking into account that criminal punishment means a restriction of liberty. However, the logic behind it would crumble if the basis of criminalization shifted towards the concept of dangerousness, because the latter can hardly be outlined with adequate certainty but also because proportionality would lose its fundamental connection to the act committed.

Acronym

DER2017-86336-R

Description

In this context, and taking a multidisciplinary approach which harmonizes the theoretical study of Criminal Law with the empirical methodology of Criminology, this project aims to evaluate the foundations of this new paradigm of “Criminal Law of Dangerousness”. We seek to analyze how fundamental rights, as an inherent feature of a Democratic State, can operate in this new paradigm as a limit to the ius puniendi held by the state.

According to this framework, the specific goals of this project are the following:

analyzing neuroscience’s implications with regard to the notions of imputability and culpability, as well as to recidivism risk assessment.
reflecting on how the preeminence of the notion of dangerousness as the basis for criminalization can affect the principle of proportionality, with regard to both responsible persons and the criminally insane.
enforcing the democratic meaning of the principle of legality, with an interpretation that includes the protection of fundamental rights as a constitutive part of the rule of law.
analyzing the dichotomous role that fundamental rights are increasingly playing, as they are meant both to set a limit to public policies seeking security, as well as to serve as a justification to an extensive use of the Criminal Law (positive obligations, punishment and prevention, security as a fundamental right…)
studying the legal design, foundation and implementation of supervised release, specially when applied on responsible subjects.
relevance, implications and perils involving criminal risk assessment evaluation tools.
analyzing some of the most common ways in which the criminal law of dangerousness currently manifests itself:
- study of the recidivism risk of offenders responsible of child pornography crimes (profiling, criminological needs, suitability of treatment programs)
- analysis of the terrorist as a dangerous subject form a public policy, criminological and legal perspective, especially when connected to jihadism, and when digital technologies are used: terrorism exaltation and self-indoctrination.